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Fed. Judge Refuses to Stay Injunction on DAPA

By Mark Wilson, Esq. on April 10, 2015 | Last updated on March 21, 2019

Remember back in February, when District Judge Andrew Hanen said President Obama's Deferred Action for Parents or Americans and Lawful Permanent Residents (DAPA) was unconstitutional? That ruling put the whole program in jeopardy, and the administration filed an emergency motion to stay the court's injunction.

On Tuesday, Hanen decided that the administration wouldn't be getting a stay, setting the stage for a showdown at the Fifth Circuit Court of Appeals.

Public Statements Are Apparently Evidence

Even though Hanen made it clear in his February order that he was no fan of the normative policy behind DACA, he nevertheless said the law violated the Administrative Procedure Act (APA) because it amounted to a "final agency action." While the administration claimed that DACA was either non-enforcement or agency guidance, Hanen said the creation of a mechanism by which undocumented immigrants could petition to stay in the country went way beyond non-enforcement. Also, the memoranda constituting DACA didn't sound like it was just a "guideline."

Even though several states sued the government, Hanen really only singled out Texas as having standing to bring a suit because of increased spending on drivers licenses. The administration prudently made the claim that, at the very least, all the other states should be struck for lack of standing.

But Hanen was unfazed: Citing to the Supreme Court's 2007 EPA decision, he said that only one plaintiff had to have standing in order for all of them to. In that case, only Massachusetts was found to have standing to challenge the EPA's failure to enforce the Clean Air Act. Nevertheless, the Supreme Court said, that was enough to give all the states standing. "Thus, the Government has already fought this battle once in the Supreme Court and lost," said Hanen.

As he had before, Hanen relied on the president's public statements regarding DACA as evidence of the law's intended effect. Statements at a town hall in Miami, for example, led to the conclusion that DACA was mandatory, not a guideline, leading to perhaps the better argument, which is that DACA is "a mandatory directive that is easily characterized as a substantive rule under the APA."

Twisting the Knife

Still, the government claimed that the scope of the injunction should be limited just to Texas, the state where the court found specific facts constituting an injury. Hanen wasn't interested in this argument, either, citing to the government's amicus brief in last year's Arizona immigrant drivers license case. There, the administration claimed that Arizona couldn't abrogate federal law because of the Immigration and Naturalization Act's "comprehensive federal statutory scheme for regulation of immigration and naturalization."

"Despite these past arguments, the Government now suggests for the first time here that this Court should apply one immigration scheme to Texas and a different one to the rest of the states," wrote Hanen -- although this is a different case, and lawyers are free to take different positions in different litigation.

After taking the unnecessary step of calling out the government for holding different positions in different cases, Hanen nevertheless concluded that "there is a lengthy history of precedent concerning the need for a uniform approach to immigration." Additionally finding no irreparable harm by enjoining DACA, Hanen denied the government's motion to stay the order, which will undoubtedly send this case to the Fifth Circuit. That court just dismissed a state challenge to Obama's 2012 deferred action plan for children, suggesting that it could do the same for this case.

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